Citation NR: 9740566
Decision Date: 12/05/97 Archive Date: 12/12/97
DOCKET NO. 92-02 816 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina
THE ISSUES
Whether new and material evidence has been submitted to
reopen claims for service connection for residuals of a right
eye injury, a back disorder, a disorder manifested by
multiple joint pains, and tinnitus.
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently rated 30 percent disabling.
Entitlement to an increased (compensable) evaluation for left
ear hearing loss.
Entitlement to a total rating for compensation purposes based
on individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active duty for training from November 1957
to April 1958, and active service from September 1958 to
September 1963 and from January 1964 to June 1978.
In April 1990, the Board of Veterans’ Appeals (Board)
determined that the evidence submitted did not provide a new
factual basis for granting service connection for residuals
of a right eye injury (service connection for a right eye
condition was denied by an August 1978 RO rating decision and
an August 1987 Board decision), and denied service connection
for a back disorder, a disorder manifested by multiple joint
pains, and tinnitus.
In 1991, the veteran submitted an application to reopen the
claims for service connection for residuals of a right eye
injury, a back disorder, a disorder manifested by multiple
joint pains, and tinnitus, and he submitted claims for an
increased evaluation for PTSD (rated 30 percent), an
increased (compensable) evaluation for left ear hearing loss,
and a total rating for compensation purposes based on
individual unemployability.
This appeal comes to the Board from October 1991 and later RO
decisions that determined there was no new and material
evidence to reopen the claims for service connection for
residuals of a right eye injury, a back disorder, a disorder
manifested by multiple joint pains, and tinnitus; and denied
an increased evaluation for PTSD, an increased (compensable)
evaluation for left ear hearing loss, and a total rating for
compensation purposes based on individual unemployability.
The Board remanded the case to the RO in March 1993, July
1995, and December 1996 for additional development, and the
case was returned to the Board in 1997.
In the Board’s July 1995 remand, the issue of whether there
was clear and unmistakable error in earlier RO rating
decisions (denying service connection for a left ankle
disability, a gallbladder disability, and hypertension) was
referred to the RO. By rating decision of September 1997 the
RO determined there had been no such error, and so informed
the veteran. He has not filed a notice of disagreement, and
the Board will not further address this issue.
Correspondence dated in May 1995 received from the veteran’s
representative constitutes a claim for service connection for
right ear hearing loss. This claim has not been adjudicated
by the RO and will not be addressed by the Board. This claim
is referred to the RO for appropriate action.
The veteran has also raised claims for service connection for
prostate cancer and a skin condition, both attributed to
agent orange exposure. He has not returned consent forms to
enable the RO to obtain medical information. These claims
are not before the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he has decreased visual
acuity of the right eye, a back disorder, a disorder
manifested by multiple joint pains, and tinnitus which are
due to a blast injury from a rocket in Vietnam while in
service, and that he has submitted new and material evidence
to reopen claims for service connection for these conditions.
He maintains that his PTSD and left ear hearing loss are more
severe than currently rated, and that his service-connected
disabilities preclude him from obtaining or maintaining
gainful employment.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files, his VA vocational rehabilitation (Chapter 31)
file and counseling records, and his VA jobs folder. Based
on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of
the Board that there is no new and material evidence to
reopen claims for service connection for residuals of a right
eye injury, a back disorder, a disorder manifested by
multiple joint pains, and tinnitus. It is also the decision
of the Board to deny the claims for an increased evaluation
for PTSD, an increased (compensable) evaluation for left ear
hearing loss, and a total rating for compensation purposes
because the veteran failed to report for VA scheduled
examinations without good cause to determine the severity of
his service-connected disabilities.
FINDINGS OF FACT
1. In April 1990, the Board denied service connection for
residuals of a right eye injury, a back disorder, a disorder
manifested by multiple joint pains, and tinnitus.
2. The evidence added to the record since the April 1990
Board decision is duplicative or cumulative of evidence
previously of record, does not tend to show that a right eye
disability, a back disorder, a disorder manifested by
multiple joint pains, and tinnitus are due to an incident of
service, and when considered with the evidence previously of
record does not raise a reasonable possibility of a change in
the prior adverse decision.
3. Service connection is currently in effect for PTSD, rated
30 percent; chondromalacia of the knees, rated 10 percent;
and left ear hearing loss, rated zero percent. The combined
rating for the service-connected disabilities is 40 percent.
4. The veteran failed to report for VA medical examinations
and a social and industrial survey determined by VA to be
required to determine the severity of his service-connected
disabilities.
5. Medical evidence tending to show that the veteran is
physically unable (rather than unwilling) to travel for these
examinations has not been submitted.
CONCLUSIONS OF LAW
1. The additional evidence submitted since the April 1990
Board decision, denying service connection for residuals of a
right eye injury, a back disorder, a disorder manifested by
multiple joint pain, and tinnitus, is not new and material;
the claims are not reopened; and the prior Board decision is
final. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1997);
38 C.F.R. §§ 3.156, 3.160, 20.1100 (1997).
2. The veteran without good cause failed to report for VA
examinations and a social and industrial survey required to
determine the severity of his service-connected disabilities,
and his claims for a rating in excess of 30 percent for PTSD,
an increased (compensable) rating for left ear hearing loss,
and a total rating for compensation purposes based on
individual unemployability must be denied. 38 C.F.R.
§ 3.655(a), (b) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Whether New and Material Evidence has been Submitted to
Reopen Claims for Service Connection for Residuals of a Right
Eye Injury, a Back Disorder, a Disorder Manifested by
Multiple Joint Pains, and Tinnitus.
In order to establish service connection for a disability,
the evidence must demonstrate the presence of it and that it
resulted from disease or injury incurred in service.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303
(1997).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated while
performing active duty for training or injury incurred or
aggravated while performing inactive duty training.
38 U.S.C.A. §§ 101(24), 106 (West 1991).
Where arthritis becomes manifest to a degree of 10 percent
within one year from date of termination of active service,
it shall be presumed to have been incurred in active service.
38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1997);
38 C.F.R. §§ 3.307, 3.309 (1997).
The April 1990 Board decision, denying service connection for
residuals of a right eye injury, a back disorder, a disorder
manifested by multiple joint pains, and tinnitus, is final
with the exception that the veteran may later reopen the
claims if new and material evidence is submitted. 38
U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1997); 38 C.F.R.
§ 3.160(d) (1997). The question now presented is whether new
and material evidence has been submitted since the Board’s
adverse April 1990 decision to reopen the claims for service
connection for residuals of a right eye injury, a back
disorder, a disorder manifested by multiple joint pains, and
tinnitus, and to permit review of these claims on a de novo
basis. Manio v. Derwinski, 1 Vet. App. 140 (1991). For
evidence to be deemed new, it must not be cumulative or
redundant; to be material, it must be relevant and probative
to the issue at hand. New evidence is probative when it
tends to prove or actually proves an issue; that is, it tends
to prove the merits of the claim as to each essential element
that was a specified basis for the last disallowance of the
claim. Evans v. Brown, 9 Vet. App. 273 (1996). If it is new
and probative, then the evidence when viewed in the context
of all the evidence, must raise a reasonable possibility of a
change in the prior adverse outcome. 38 C.F.R. § 3.156(a)
(1997); Colvin v. Derwinski, 1 Vet. App. 171 (1991).
The evidence of record at the time of the April 1990 Board
decision consisted of statements from the veteran to the
effect that he had residuals of a right eye injury, a back
disorder, a disorder manifested by multiple joint pains, and
tinnitus due to a blast from a rocket in Vietnam while in
service; and service, VA, and private medical reports. The
evidence of record at that time indicated that the veteran
had decreased visual acuity at the time of his medical
examination for enlistment into service in July 1958 and did
not show a chronic right eye disability acquired in service;
that he had a chronic back disability, including arthritis,
first found several years after service; that he was found to
have probable fibrositis and possible fasciitis several years
after service, but did not show that he had a chronic
disorder manifested by multiple joint pains; and that the
veteran had occasional acute tinnitus in service, but did not
show that he had chronic tinnitus.
Since the April 1990 Board decision, additional statements
from the veteran have been received, to the effect that he
has residuals of a right eye injury, a back disorder, a
disorder manifested by multiple joint pains, and tinnitus due
to a blast from a rocket in Vietnam while in service. This
evidence is repetitive of his prior statements, and not new
evidence. Reid v. Derwinski, 2 Vet. App. 312 (1992).
Moreover, as a layman, the veteran’s statements are not
sufficient to support a claim based on medical causation.
Moray v. Brown, 5 Vet. App. 211 (1993).
Duplicate copies of private medical reports and of service
documents were also received since the April 1990 Board
decision. Duplicate records are not new evidence. Morton v.
Principi, 3 Vet. App. 508 (1992). Other medical records
received since the April 1990 Board decision are not
probative because they do not tend to show that the claimed
disorders are due to an incident of service, and they are not
material because when considered with the evidence of record
in April 1990 do not raise a reasonable possibility of a
change in the prior adverse decision. These comprise one
page of a June 1993 hospital report from Pitt County Memorial
Hospital containing no pertinent diagnosis, and September
1995 pulmonary function studies from Wayne Memorial Hospital.
The veteran has not returned consent forms that would enable
VA to obtain further records.
As no new and material evidence has been submitted since the
April 1990 Board decision, the claims for service connection
for residuals of a right eye injury, a back disorder, a
disorder manifested by multiple joint pains, and tinnitus are
not reopened, and the April 1990 Board decision remains
final.
II. Increased Evaluation for PTSD, Increased (Compensable)
Evaluation for Left Ear Hearing Loss, and a Total Rating for
Compensation Purposes based on Individual Unemployability
The veteran’s claims discussed in this section of the
decision are well grounded, meaning they are plausible. The
Board finds that the RO has made all reasonable efforts to
assist the veteran in developing evidence with regard to the
claims, and that no further assistance to the veteran is
required to comply with VA’s duty to assist him. 38 U.S.C.A.
§ 5107(a) (West 1991).
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can
practicably be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155. Although the regulations
require that, in evaluating a given disability, that
disability be viewed in relation to its whole recorded
history, 38 C.F.R. § 4.41, where entitlement to compensation
has already been established, and an increase in the
disability rating is at issue, it is the present level of
disability which is of primary concern. Francisco v. Brown,
7 Vet. App 55 (1994). Also, where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7. An evaluation of the level of disability present must
also include consideration of the functional impairment of
the veteran's ability to engage in ordinary activities,
including employment, and the effect of pain on the
functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45.
A total disability rating (100 percent) for compensation may
also be assigned where the schedular rating is less than
total, when it is found that the disabled person is unable to
secure or follow a substantially gainful occupation without
regard to advancing age as a result of a single service-
connected disability ratable at 60 percent or more, or as a
result of two or more disabilities, provided at least one
disability is ratable at 40 percent or more, and there is
sufficient additional service-connected disability to bring
the combine rating to 70 percent or more. This includes
consideration of such factors as the extent of the service-
connected disabilities, and employment and educational
background. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1997).
When entitlement or continued entitlement to a benefit cannot
be established or confirmed without a current VA examination
or reexamination and a claimant, without good cause, fails to
report for such an examination, or reexamination, action
shall be taken in accordance with paragraph (b). Examples of
good cause include, but are not limited to, the illness or
hospitalization of the veteran, death of an immediate family
member, etc. 38 C.F.R. § 3.655(a) (1995).
When a claimant fails to report for an examination scheduled
in conjunction with a claim for increase, the claim shall be
denied. 38 C.F.R. § 3.655(b) (1995).
A VA letter from a social worker dated in June 1991, notes
that the veteran wanted a psychiatric examination requested
in conjunction with his claim for an increased evaluation for
PTSD to be conducted by Dr. Malekpour in his home town. It
was noted that the veteran had hearing and visual impairments
which interfered with his ability to drive and that he did
not want to drive out of town for the evaluation.
A review of the record shows that service connection is in
effect for PTSD, rated 30 percent; chondromalacia of the
knees, rated 10 percent; and left ear hearing loss, rated
zero percent. The combined rating for the service-connected
disabilities is 40 percent.
In August 1991, the veteran underwent a VA fee-basis
psychiatric examination by Bahman Malekpour, M.D. The
diagnoses were PTSD, rule out major depression, and rule out
personality disorder. He was not found to be incompetent.
On an application for increased compensation based on
individual unemployability dated in November 1991, the
veteran reported that he had last worked full-time in 1982.
He reported various problems due to service and nonservice-
connected disabilities.
VA correspondence shows that various VA examinations and
social and industrial surveys were scheduled for the veteran
between 1993 and 1997, and that he failed to report for the
scheduled appointments. The examinations had been scheduled
to determine the severity of his service-connected
disabilities and their effect on his ability to work. These
documents show that the veteran was notified on several
occasions that he had to report for the scheduled
examinations. In a letter from a VA medical facility dated
in July 1997, his request for examination by a local
physician was noted, and he was advised that this request
could not be granted. In a supplemental statement of the
case dated in October 1997, the veteran was notified that his
claims for an increased rating for PTSD, an increased
(compensable) evaluation for left ear hearing loss, and a
total rating for compensation based on individual
unemployability were denied because he failed to report for
VA examinations. He was notified of the provisions of
38 C.F.R. § 3.655(a), (b) that require denial of claims for
increased ratings when a veteran fails to report for a VA
examination.
A review of the record does not show correspondence from the
veteran indicating his intent to report for a VA examination
other than a VA fee-basis examination by a physician in his
home town.
A longitudinal review of the record indicates that the
veteran was scheduled for VA examinations to determine the
severity of his service-connected disabilities and for a
social and industrial survey to determine the effect of these
disabilities on his ability to work, and that he failed to
report for these examinations because he did not want to
travel to another town because of his hearing and visual
impairments which interfered with his ability to drive. His
primary objection appears to be that the evidence is already
sufficient, and that further examinations are not necessary.
However, the current severity of his service-connected
disabilities cannot be determined on the basis of the old
records. Nor can his employability be assessed, particularly
where there is evidence that he is working (June 1997 Report
of Contact). He was notified that his request for VA fee-
basis examinations was denied and that he had to report for
the scheduled examinations. While the evidence indicates
that he has various disabilities, including hearing and
visual impairments, it does not show that he is blind,
totally deaf or impaired to the extent that he is unable to
travel to a VA medical facility for the purpose of medical
examination. His explanations for not wanting to report for
the scheduled examinations do not constitute good cause for
failing to report for these examinations. He was notified
that his claims had to be denied for failing to report for
these examination under VA regulatory provisions, and he
still does not indicate a willingness to report for VA
examinations unless they are conducted by a VA fee-basis
physician in his home town. Under the circumstances in this
case, the claims for increased ratings for PTSD, an increased
(compensable) rating for left ear hearing loss, and a total
rating for compensation purposes based on individual
unemployability must be denied.
ORDER
The application to reopen claims for service connection for
residuals of a right eye injury, a back disorder, a disorder
manifested by multiple joint pains, and tinnitus is denied.
The claims for an increased evaluation for PTSD, an increased
(compensable) evaluation for left ear hearing loss, and a
total rating for compensation purposes based on individual
unemployability are denied for failing to report for VA
examinations.
J. E. DAY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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